State Of Washington, Respondent V. Charlotte Ann Button, Appellant (Majority)
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FILED COURT GE APPEALS D11f ISM 2014 AUG 19 AM 9: 37 IN THE COURT OF APPEALS OF THE STATE OF WASHINGT Sg\ DIVISION II N F d 3 it BL No. 44036 -9 -II \ STATE OF WASHINGTON, Respondent, v. UNPUBLISHED OPINION CHARLOTTE ANN BUTTON, Appellant. LEE, J. street corner Charlotte Ann Button appeals a sentence condition requiring her to stand on a holding a sign stating, " I stole from kids. Charlotte Button." Button contends that the trial court lacked authority to impose this condition and that it violated her rights under the First and Eighth Amendments of the United States Constitution. Because there is no statutory authority for the sign holding condition, we need not reach Button' s constitutional challenges, and we remand for the trial court to strike the sign holding condition from her judgment and sentence. FACTS Button pleaded guilty to first degree theft for embezzling funds from a high school booster club. condition The trial court sentenced her to two months in jail and imposed an additional intended " to send a message to the community." Report of Proceedings ( RP) ( 2011) at 6. The court explained that condition: B] efore you begin your jail time, you are going to spend 40 hours standing at the Wishkah and Broadway with a sign that says, " I stole money from kids. corner of Charlotte Button." You' re going to do it two hours at a time twice a day from 7: 00 to 9: 00 in the morning and 4: 00 to 6: 00 in the afternoon. July 5, ON No. 44036 -9 -II You' re going to do it starting tomorrow, Saturday and and it be Monday through will So whatever that is, you' ll get in four days this week, for ten days. and then you' ll start the following Monday and get in another six, so you' ll be done on Saturday, a week from this Saturday. And after you complete that, you will then serve your jail sentence, but going to spend 40 hours kids. Charlotte Button." holding you' re I want you office, and you can to make have the sign. a seat before a sign up that says, " I stole money from In fact, I have a large poster board in my you leave. I' ll retrieve it at the break and give it to you, and I expect to see it down there tomorrow morning. RP ( July 5, 2011) at The trial court added a handwritten notation to the judgment and 6 -7. sentence ordering Button to prepare a sign and hold it at the location and time stated above. Button served her jail time but did not comply with the holding sign - condition. She filed an appeal based on that condition, but her attorney abandoned it after the condition was not enforced and the prosecutor indicated " he wasn' t going to do anything" about it. RP ( Sept. 21, 2012) at 3. On its own motion, the trial court issued an order requiring Button to appear and show she should not cause why cause hearing, the be punished parties agreed for that the failing to display condition was the sign as ordered. improper At the show and unenforceable. The 65- year -old Button added that complying with the condition would be physically difficult and that she and her family had suffered enough humiliation as a result of news coverage of the case. The trial court saw nothing improper about the sign holding condition and viewed the judgment and sentence as final. The court sentenced Button to an additional 60 days in jail and ordered her to display the sign after her release or face additional jail time. The court declined to stay the sanctions imposed. Button served the additional jail time but appealed the sign 2 No. 44036 -9 -II condition, and we granted her emergency motion to stay that condition pending the outcome of the appeal. Button argues on appeal that the trial court lacked authority to impose the sign-holding condition and that the condition violated her constitutional rights under the First and Eighth Amendments. 1 ANALYSIS A. SENTENCING CONDITIONS A trial court' s authority is sentencing Postsentence Review of Combs, 176 Wn. Skillman, 60 Wn. exceeded App. 837, 838, 809 its statutory authority is limited to that granted by statute. 112, 117, 308 P. 3d 763 ( 2013) ( App. P. 2d 756 ( 1991)). a question of law that In re citing State v. Whether a sentencing court has we review de novo. State v. Murray, 118 Wn. App. 518, 521, 77 P. 3d 1188 ( 2003). The statute a sentence on a that governs this case felony conviction, " is RCW 9. 94A. 505( 8), which provides that in imposing the court may impose and enforce crime related prohibitions and affirmative conditions as provided in this chapter." The phrase " as provided in this chapter" does not require crime -related prohibitions to be authorized by some other provision of the Sentencing Reform Act of 1981 ( SRA), chapter 9. 94A RCW. State v. Acrey, 135 Wn. App. 938, 943 -44, 146 P. 3d 1215 ( 2006); see also State v. Armendariz, 160 Wn.2d 106, 114, 156 P. 3d 201 2007) ( RCW 9. 94A.505( 8) constitutes independent grant of authority to impose crime -related 1 The State agrees that Button may appeal this sanction. See State v. McDougal, 120 Wn.2d 334, 340, 841 P. 2d 1232 ( 1992) ( conditions of sentence); State addressing defendant' s appeal of sanctions imposed for violating v. Hughes, 70 Wn. 3 App. 142, 143, 852 P. 2d 1097 ( 1993) ( same). No. 44036 -9 -II The " prohibitions). conditions. in this as provided chapter" qualifier does apply, however, to affirmative 2 See Armendariz, 160 Wn.2d at 114; Acrey, 135 Wn. App. at 943 -44. Crime related prohibitions may not include orders that direct an offender to perform affirmative RCW 9. 94A.030( 10); conduct. Acrey, 135 Wn. App. at 945. " Persons may be punished for their crimes and they may be prohibited from doing things which are directly related to their crimes, but they may not be coerced into doing things which are believed will rehabilitate State them." David Boerner, v. Sentencing Parramore, 53 Wn. App. 527, 531 -32, 768 P. 2d 530 ( 1989) ( quoting in Washington, ยง 4. 5 ( 1985)) ( emphasis omitted). Consequently, any order directing an offender to affirmatively do something is an affirmative condition and must be expressly authorized by the SRA. The SRA provides for a number of affirmative conditions that can be imposed depending on the See, circumstances. contributed to his 9. 94A. 670( 5), ( sentencing e. g., offense, court 6) ( RCW 9. 94A. 607( 1) ( may order him to where offender' s chemical dependency participate in rehabilitative programs); RCW court may impose affirmative conditions as part of special sex offender alternative); RCW 9. 94A. 703( 3)( d) ( as condition of community custody, court may order offender to perform affirmative conduct reasonably related to circumstances of offense). These and her statutes conviction 9. 94A.701. do of not apply to Button. first degree theft did There is no allegation of chemical dependency, not subject her to community custody. RCW Nor does any other SRA provision independently authorize the sign holding 2 The distinction between crime -related prohibitions and affirmative conditions in RCW 9. 94A. 505( 8) reflects the legislature' s retreat from rehabilitation in favor of determinate punishment. Acrey, 135 Wn. App. at 945. 4 No. 44036 -9 -II condition, which clearly requires Button to affirmatively engage in some conduct. Thus, there is no statutory authority allowing the imposition of a sign holding condition in the first instance. The trial court also lacked statutory authority to impose this condition as a sanction under RCW 9. 94A. 63333 and RCW 9. 94A. 633. 4 If an offender who is not being supervised by the Department of Corrections violates any condition of sentence, the trial court may impose the up to 60 days' RCW 9. 94A.6333( 2)( c). in RCW 9. 94A. 633( 1). sanctions specified confinement, or, RCW 9. 94A. 633( 1)( a), ( in lieu of confinement, " Such sanctions may include any other community based sanctions." b). Here, the trial court imposed 60 days' confinement and then insisted that Button comply with the sign -holding condition. The sign holding sanction is not authorized by RCW 9. 94A.633( 1) or RCW 9. 94A.6333. 3 RCW 9. 94A.6333 states, in relevant part: 1) If an offender violates any condition or requirement of a sentence, and the offender is not being supervised by the department, the court may modify its order of judgment and sentence and impose further punishment in accordance with this section. 2) If an offender fails to comply with any of the conditions or requirements of a sentence the following provisions apply: c) If the court finds that a violation has been proved, it may impose the sanctions specified in RCW 9. 94A.633( 1). 4 RCW 9. 94A.633 states, in relevant part: 1)( a) An offender who violates any condition or requirement of a sentence may be sanctioned by the court with up to sixty days' confinement for each violation or by the department with up to thirty days' confinement as provided in RCW 9. 94A.737. b) release, In lieu of confinement, an offender may be sanctioned with work home detention with electronic monitoring, work crew, community restitution, inpatient treatment, daily reporting, curfew, educational or counseling sessions, supervision enhanced through community - ased sanctions. b 5 electronic monitoring, or any other No. 44036- 9- 11 Because the trial court lacked statutory authority to impose the sign holding condition, we remand so of this that it case on can statutory be stricken from Button' s judgment grounds, we need not reach and sentence. Button' s Given the resolution constitutional arguments. State v. Speaks, 119 Wn.2d 204, 207, 829 P. 2d 1096 ( 1992). We remand for the trial court to strike the sign holding condition from Button' s judgment and sentence.. A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record in accordance with RCW 2. 06. 040, it is so ordered. We concur: 6
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